Posted on 04/18/2007 1:55:30 PM PDT by Ben Mugged
You’ll also note that elsewhere in the document pack, counsel was actually appointed in this case.
He did get a hearing, and he was adjudicated, per this documentation.
I was under the impression that any commitment, including voluntary, for any reason, including drug or alcohol abuse, was a bar to purchase.
I admit to some level of confusion living in Illinois where mental health records are reported, and would bar possession of firearms until satisfactorily explained.
I thought that was federal, is it just an Illinois thing?
Or did the authorities that protect us simply mess up in flagging his purchases.
Court records don’t get reported to the FBI and are not included in III reports or the NCIC checks. “Mental Illness” is treated like AIDS. There is far more importance placed on not stigmatizing the potentially homicidal patient than there is on public safety and making their condition available to law enforcement or the public.
I think there should be a ban on kids in school who are on SSRIs. Its not the redneck kids with a gunrack in their truck shooting up schools, its the kids who are put on these mind-altering drugs. Instead of just tracking sex offenders, why aren’t they tracking people who need to be mentally disabled with these drugs? Instead of profiling people who own guns (250,000,000 guns that did NOT commit a crime this week), we can just profile the people who are being turned from ‘troubled’ into ‘homicidal’.
They are, however, reported to VCIN, which VA gun buyers *must* be checked against before they are allowed to take possession. And an entry in the VCIN database of an incident like this is an automatic disqualifaction.
And last I heard, VCIN is linked to NICS.
Are you sure about that? I'm under the impression that commitments are reported. May be a state thing here in Illinois. If it is, I'm going to have to choke and admit we get something a little bit right.
Okay I’m not a lawyer and I don’t even play one on TV ...
It looks like counsel was appointed for the original hearing (pg 4). On pg. 5 it says that “alternatives to involuntary hospitalization and treatment were deemed suitable.” Looks like as long as he followed the “recommended treatment” he wouldn’t be involuntarily commited. Page 6 is just an explaination of his rights under the involuntary commitment process, should it get that far.
Not knowing what the law/process is in VA, it’s hard to say if this qualifies as an adjudication of mental illness. Although with hindsight, obviously it should.
If it were a criminal case, this would be like a pretrial diversion program and a withold of adjudication (i.e., no conviction) provided all the conditions were met.
If you look at 4473 question 11c ... an example would be if you plead to a felony (Grand Theft, Fraud, etc.) and made a deal to do pretrial diversion or probation and the court withheld adjudication you would not have a felony conviction. They can’t count arrests against you, just convictions.
Of course, who knows what paperwork may turn up in the coming days ...
"National and state databases are accessed simultaneously at the time of transaction. Four are maintained by the Virginia Department of State Police, accessible by the Virginia Criminal Information Network (VCIN): Virginia’s wanted and missing persons files and protective orders, Virginia’s criminal history record files, a calendar file on handgun purchases required to monitor and enforce lawful handgun limitations and Virginia’s database of adjudications of legal incompetence and incapacity, and involuntary commitments to mental institutions."
It doesn't sound like they track every court action in these mental health hearings/evaluations. Just actual adjudications and involuntary commitments. Legal incompetence and incapacity isn't very explanatory, but I'm guessing it has a fairly high burden of proof required.
but not others.
Under Virginia law, "A magistrate has the authority to issue a detention order upon a finding that a person is mentally ill and in need of hospitalization or treatment.
"The magistrate also must find that the person is an imminent danger to himself or others," says the guideline from Virginia's state court system.
"
"must find that the person is an imminent danger to himself or others,"
So was this guidline met? If yes, then the first statement is false.
This inquiring mind wants to know...
VA Code:
§ 18.2-308.1:2. Purchase, possession or transportation of firearm by persons adjudicated legally incompetent or mentally incapacitated; penalty.
It shall be unlawful for any person who has been adjudicated (i) legally incompetent pursuant to former § 37.1-128.02 or former § 37.1-134, (ii) mentally incapacitated pursuant to former § 37.1-128.1 or former § 37.1-132 or (iii) incapacitated pursuant to Chapter 10 (§ 37.2-1000 et seq.) of Title 37.2 and whose competency or capacity has not been restored pursuant to former § 37.1-134.1 or § 37.2-1012, to purchase, possess, or transport any firearm. A violation of this section shall be punishable as a Class 1 misdemeanor.
“And last I heard, VCIN is linked to NICS.”
VCIN would be linked to NICS in the same way that NICS is linked to NCIC.
These are all distributed databases which are linked together to perform a specific function.
I had a friend who worked on the “Virginia” piece of NCIC (meaning that it’s not a centralized FBI monolith), and presumably NICS and VCIN are built in the same distributed manner.
Some questions have been raised over Cho's mental health and whether that should have prevented him from being able to purchase the handguns.
A Virginia judge in December 2005 deemed Cho "an imminent danger to himself because of mental illness" and ordered outpatient treatment for him, according to court documents.
Special Justice Paul M. Barnett, who filled out the certification and order for involuntary admission to a mental health facility, checked the box that said: "The alternatives to involuntary hospitalization and treatment were investigated and deemed suitable."
"Only if I order them into a hospital is there any effect on their gun rights," Barnett told CNN on Wednesday.
...
Virginia and federal law prohibit the sale of guns to anyone who has been sent unwillingly to a mental institution.
The Virginia State Police Web site features a 16-question "Firearms Purchase Eligibility Test." The site says that answering yes to any of the queries means a person may not be able to purchase a firearm.
Question 9 states: Have you ever been adjudicated legally incompetent, mentally incapacitated, or been involuntarily committed to a mental institution?
Because Cho was not involuntarily committed to a mental institution, his appearance before the judge and his evaluation at a mental health facility did not show up when he bought the guns.
It sounds like he got right to the edge of where he needed to be to start tripping alarms...and beat the system every time.
Not if it hasn’t been entered as required by law. You will be able to access information you shouldn’t by law be able to find if the clerk doesn’t do his/her job. It’s a crap shoot. The system is only as good as the people who work in it. The medical records are protected by law, so you wouldn’t have gotten those. That’s why the questions about mental health on the form to buy a gun are ridiculous. Even if the buyer was crazy, do you think he would know? He/She would seem perfectly normal to him/herself.
IL rules are different than the fed rules. In IL, there's a list of items that would get a FOID automatically revoked for voluntary committment. The auto revocation is a disqualifier for 5 years at least for many items. Then one can reapply. I wouldn't think entering an alcohol program would be that long of a disqualification, but an inpatient stay for a few weeks for an alcohol problem might be something they'd pull a FOID for and toss the 5 year rule on. I doubt entry into an alcohol counseling program would get a FOID pulled. The docs are required to submit any and all such cases to the State Police FOID dept.(or whoever the forwarding party is).
Any involuntary treatment would definitely fall under fed rules. Cho would have had his FOID pulled in IL, because the court declared him a danger to himself and forced the exam and treatment. Stalking itself is a felony in IL and the judge definitely would have determined Cho was both a danger to both himself and others. IL would have reported the results to the feds, because the case seems to have been dropped, because of the court's ruling and Cho's agreement to go through the treatment and this would definitely get his FOID pulled. Both the doc's required filing and the court records would have been sent to the State police to have the FOID pulled for at least 5 years. The person may get the FOID back after that time by showing sufficient recovery. If they're convicted though, gun rights would be gone for good.
VA law apparently is less restrictive than fed law, unlike IL, which is more restrictive. I saw the VA judges comments posted, but I think his remarks can only be taken as referring to the State of VA, not the feds. Here's the relevant fed law:
18USC922(g)(4)" who has been adjudicated as a mental defective or who has been committed to a mental institution,
All it takes is the ruling, not a committment. Cho didn't "voluntarily" enter a exam/treatment program, on his own note. He entered it after a criminal complaint was filed, a judge found him a danger to himself, and he was theatened with involuntary committment if he didn't comply.
The fed law regarding what states must report is:
(A) For purposes of paragraph (1), an adjudication as a mental defective occurs when a court, board, commission, or other government entity determines that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease— (i) is a danger to himself or to others;
Paragraph 1 is:
ELIGIBILITY OF STATE RECORDS FOR SUBMISTHE TO CRIMINAL INSTANT NATIONAL (1) REQUIREMENTS FOR ELIGIBILITY.—The State shall make available the following information established either through its own database or provide information to the Attorney General: (A) The name of and other relevant identifying information relating to each person disqualified from acquiring a firearm under subsection (g) or (n) of section 922 of title 18, United States Code, and each person disqualified from acquiring a firearm under applicable State law.
Fed law also says: (C) EXCEPTIONS.—This paragraph(A) does not apply to— (i) a person— (I) in a mental institution for observation; or •HR 4757 EH 10 (II) voluntarily committed to a mental institution;
It's my belief that the feds consider Cho to be adjudicated a mental defective. IL certainly does. It appears VA does not, for purposes of their own State law. I'd have to see some fed case law, or elaboration on the matter to be certain. I think voluntarily refers to a person checking in on their own, without a court influencing the matter. I'll get back when I find an answer.
Education isn’t the sole answer, either, although I believe an educated population is better than an ignorant one. It’s the wisdom that comes from a higher power, together with that education that will produce acceptable results. You can’t get wisdom except by experience (which could be tainted) or from God above — which if sought is never refused.
"Yes there is. I am familiar with crisis work. If someone poses a danger to themselves or others, they can be involuntarily transported by ambulance or police to ER.
The detention is related to some statutory crime. Like public drunkenness, suspected drug use, disorderly, ect. No one can be detained for refusing to get treatment for broken bones after falling off a ladder, extensive bleeding after an encouter with a buzz saw, ect... In this case a judge began committment procedings according to VA law, with regard to a stalking complaint which amounted to a misdemeanor there. The beginning of those committment procedings is called "temp detention/evaluation" in VA. In other places, it has a catch all meaning. I'm sure it does in VA also. In general, it has a more colloquial meaning as you've used it, as is detaining a drunk until they sober up. No judge has to be bothered with that sort of thing. VA statutes don't call for a mental exam for a stalking complaint. THe move to force the exam was done by the authorities, because they noted bizarre behavior.
You might sh!t your pants if you knew that not even all felonies get reported to the FBI. It is a state by state decision as to what gets reported. Illinois has a central database which gets reported (primarily) from Cook county of felonies and higher level misdemeanors. DUIs get reports in Illinois, for instance, but if you go up to Minnesota they have a county by county reporting system and not all counties keep the same records.
The APA’s (psychologists and psychiatrists) fight incredibly hard (along with the help of Ted Kennedy and other liberal nutcases) to keep psych records as ‘medical’ issue and not public safety issues. Anytime somebody loses it, its not a criminal matter. Its a ‘medical’ matter. Its complete horse hockey but it protects their industry.
The III (Triple “I”) report which the FBI uses as a background report is a compilation of Federal offenses and whatever they can get from the states and/or counties in states where the state doesn’t have one single agency which compiles all records. Most states have a State Police but some still have a State Highway Patrol as the only statewide agency. This discrepancy makes these gun background checks a complete guessing game for non-gang members.
You also have to factor in that in a huge number of state you can be institutionalized against your will. I recall a particular case in Oklahoma where an alcoholic got into a fight in a bar and instead of being thrown in the drunk tank he was taken to the local psych hospital where he spent the next 72 hours, against his will, being put on heavy sedatives and anti-psychotics. The head of the hospital admitted under oath in a deposition that he had ‘never seen a severely drunk person up close before’ and therefore didn’t know the symptoms and misdiagnosed them for a violent psychosis. And this psychiatrist was on the states mental health board overseeing other hospitals.
There is no exact standard for this stuff which goes beyond each state. Law enforcement complains about it but nothing gets done. Its similar to the inability of Federal agencies to get access to databases of other agencies in the past which made cooperation impossible. The fear of somebody getting unauthorized access to one system and therefore getting everybody elses systems at the same time was a bigger fear than the fear of NOT connecting the dots and finding the bad guys.
As far as I can see, committment and adjudication are considered mutually exclusive. 27CFR178.11 simply requires the adjudication be made that the person is dangerous to himself, or others. Adjudicated as a mental defective. (a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) Is a danger to himself or to others;
There's no conditions, or limitations given, so the fed rule would apply to Cho. That stands regardless of the effect of the ruling in VA law. VA law appears to be less restrictive than fed law. These folks agree, that the adjudication of danger to self, or others, even with voluntary committment to an exam/treatment program is a fed disqualifier.
From the site:
"Accordingly, persons with mental disorders who have voluntarily committed themselves to mental institutions and have not been judged by a government authority to be dangers to themselves or others, insane, or lacking mental capacity are not prohibited by federal law from possessing firearms. This is true even if such mentally ill persons are believed to be dangers to themselves or others."
The only court cases I've found refer to the establishment of remedies to the 18USC922(g) prohibition. Congress established the remedy. It appears the NICS database has very little in the way of either committments, or adjudications, except from States that are sending some data. Everything I've found says the VA court's determnation is a fed disqualifier, regardless of the fact VA law does not consider it a disqualifier. I think the ATF agrees. See their comments on the matter in this doc.
Thanks. Barnett’s comments only refer to VA disqualifications. I’m convinced they do not apply to fed disqualificaitons. See #175 and #179. #179 has a link that shows what the ATF in their own words, with references to other fed understandings on the matter, think about the consequences of Barnett’s ruling and the meaning of “adjudicated mentally defective”.
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